plaintiffs-appellants memo of law

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UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT----------------------------------------------------------------------------)(HIRAM MONSERRATE, Individually and as anelected official and member of the New York State Senate,CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III,MONIFA AFIA BEY, REV. NANCY TORRES, LORETTAHENDERSON,MALIKAH K. SHABAZZ, Individually and asduly registered and qualified voters in the New York State13 th Senatorial District,

Plaintiffs-Appellants,-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH,in his official capacity as Temporary President of the New YorkState Senate, ANGELO J. APONTE in his official capacity asSecretary of the New York State Senate, THOMAS P.DiNAPOLI, in his official capacity as State Comptroller ofthe State of New York, ERIC T. SCHNEIDERMAN, in hisofficial capacity as Senator of the State of New York andChair of the New York State Senate Select Committee toInvestigate the Facts and Circumstances Surrounding theConviction of HIRAM MONSERRATE on October 15,2009, andDAVID A. PATTERSON, in his official capacity asGovernor of the State of New York, RICHARD RAVITCH inhis official capacity as Lieutenant Governor ofthe State of NewYork, and LORRAINE CORTES-VAZQUEZ in her officialcapacity as Secretary of State for the State of New York.

Defendants-Appellees.----------------------------------------------------------------------------)(

S.D.N.Y. Docket No.10 Civ. 1106 (WHP)

PLAINTIFFS-APPELLANTS' MEMORANDUM OF LAW IN SUPPORT OF ANEXPEDITED APPEAL FROM THE DENIAL OF A PRELIMINARY INJUNCTION

NORMAN SIEGEL260 Madison AvenueNew York, NY 10016(212) 532-7586

McLAUGHLIN & STERN, LLPSteven 1. HymanAlan E. SashRachel Nicotra260 Madison AvenueNew York, NY 10016(212) 448-1100

Attorneys for Plaintiffs-Appellants


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PRELIMINARY STATEMENTPlaintiffs-Appellants move for an expedited appeal from a Memorandum and Order of

the United States District Court for the Southern District ofNew York (Pauley, D.J.), datedFebruary 19,2010 ("Memo."), denying plaintiffs' application for a preliminary injunction.Plaintiffs seek to enjoin the defendants from enforcing Senate Resolution 3691 ("Resolution3691 "), which expelled Senator Hiram Monserrate from the New York State Senate ("Senate"),and from holding a Special Election on March 16,2010, to fill the resulting vacancy in the 13 thSenatorial District of the State ofNew York.

In less than an hour on the night of February 9, 2010, the Senate voted to expel SenatorMonserrate and immediately thereafter, adjourned for a twelve-day recess. Because theplaintiffs' preliminary injunction was denied, Senator Monserrate was unable to return to theSenate when it reconvened on February 22, 2010. Thus, the constituents of the 13 th SenatorialDistrict remain unrepresented, while legislation and bills are debated and passed without theirvoice. Because the expulsion was unconstitutional, the Special Election scheduled for March 16,2010, should not be held and Senator Monserrate must be restored to his seat. As this is a case ofthe utmost urgency, plaintiffs' counsel has moved expeditiously at every stage of the proceedingbelow to mitigate the irreparable injuries and to prevent further constitutional violations.Plaintiffs now appeal to the Second Circuit of the United States Court of Appeals for anexpedited review of the denial of the preliminary injunction, so that Senator Monserrate canreturn to the Senate without the prolonged interruption in service that would exacerbate theconstitutional harm.

The crux of this case is not solely about Senator Monserrate. This case is about aconstitutional democracy and the rule oflaw, and the legal safeguards that protect the right of the

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people to choose their elected officials, and the right of elected official to be free from anunconstitutional usurpation executed under color of state law. This case is about the 41,000voters of the 13 th Senatorial District who have been unconstitutionally deprived of the candidateof their choice and political representation. This case is about the defects in due process thatdogged the procedures used by the Senate in both its investigation and expulsion of SenatorMonserrate. It is a case of first impression in the Second Circuit, and the issues it raises are ripefor resolution on the merits.

The United States is a nation that respects the rule of law, not the rule of individuals.This nation's Constitution protects the people from abusive government by ensuring that nolegislative body (local, state or national) acts contrary to law. Because Senator Monserratereceived no specific charges, no formal notice that expulsion was being considered, and noopportunity to confront the witnesses and evidence adopted by the Senate in its investigation, theprocess used to expel him was constitutionally defective. Instead, the defendants rested theexpulsion of a duly elected, sitting Senator on the back of a vague, overly broad statutoryprovision, which gave them unfettered discretion without any limiting standards. Here, theSenate has conducted an unconstitutional usurpation of a duly elected Senator.

The public interest in this case is paramount. Without an expedited appeal, plaintiffs willcontinue to suffer irreparable injury. If the denial ofthe preliminary injunction is not reversed,the Senate will have succeeded in an unprecedented political usurpation of the will of the people- the ousting of a sitting New York State Senator without the due process required under theUnited States Constitution - and no sum ofmoney damages can rectify this violation of theircivil rights. Moreover, the Special Election scheduled for March 16 ,2010, cannot cure theunderlying constitutional violation of an improper expulsion. Regardless of the outcome of the

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Special Election, ifit is later determined that his expulsion was unconstitutional, the defendants'actions will have worked a grave and irreparable injury on Senator Monserrate and hisconstituents. The people are entitled under federal law to a republican form of government, andtheir chosen representative should not be summarily expelled because of the prevailing politicalclimate.

This case does not raise the specter of udicial interference with a legislature's ability topolice its members or to manage the affairs of its house. Rather, it presents an issue that goesstraight to the heart of a constitutional democracy: whether legislatures should enjoy unfettereddiscretion to override the voice of the people and oust duly-elected representatives. This courtshould recognize that the Senate's actions leading up to and including the vote to expel underResolution 3691, were taken without due process oflaw, effects the disenfranchisement of thevoters, and illegitimately denies them their choice of a representative, thereby infringing theirright ofpolitical association. For, if you expel those who are disagreeable to the masses, orwhomever you please, the legislative body will ultimately be self-created and self-existing. See18 Parl.Hist.Eng. 367 (1775).

STANDARD OF REVIEW

A district court's denial of a preliminary injunction is reviewed for an abuse of discretion,and its legal holdings are reviewed de novo. D.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 510(2d Cir. 2006). There has been an abuse of discretion if the district court has: "(1) 'based itsruling on an erroneous view of the law,' (2) made a 'clearly erroneous assessment of theevidence,' or (3) 'rendered a decision that cannot be located within the range of permissibledecisions.'" Lynch v. City ofNew York, 589 F.3d 94, 99 (2d Cir. 2009) (internal citationsomitted).

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LEGAL ARGUMENTThe District Court erred in denying the plaintiffs' request for a preliminary injunction

because the denial was based on several erroneous views of the law. First, when evaluating theplaintiffs' request for a preliminary injunction, the more rigorous "clear and substantial"likelihood analysis was applied, even though the rel ief sought only warranted a likelihood of thesuccess on the merits. Moreover, even if the District Court did apply the correct standard,plaintiffs also meet the "clear and substantial" standard. Second, the District Court improperlyweighed the burden imposed upon the fundamental voting and associational rights of theplaintiffs by the expulsion of Senator Monserrate. Third, the Senate relied on Legislative Law 3, which provides no intelligible standards for expulsion, rendering it unconstitutionally vagueand overbroad. Fourth, the procedures adopted by the Senate and the Select Committee deprivedSenator Monserrate and his constituents of a fundamental right, without according him the fullprotections of due process.I. THE DISTRICT COURT APPLIED THE WRONG LEGAL STANDARD FOR A

PRELIMINARY INJUNCTIONThe District Court incorrectly characterized the rel ief requested by the plaintiffs as a

mandatory, rather than a prohibitive injunction. Thus, by burdening the plaintiffs with the higherstandard of a "clear and substantial" likelihood of success on the merits, the District Court basedits denial of the preliminary injunction on an erroneous view of the law.

Where the moving party seeks to enjoin '''government action taken in the public interestpursuant to a statutory or regulatory scheme,'" the district court may enter a prohibitorypreliminary injunction after the moving party has shown that: (1) "absent injunctive relief, hewill suffer 'irreparable injury,'" and (2) that "there is 'a likelihood that he will succeed on themerits of his claim.'" Mastrovincenzo v. City ofNew York, 435 F.3d 78,89 (2d Cir.2006)

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(quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989. A preliminaryinjunction takes on a mandatory form only when it "alters the status quo by commanding apositive act." D.D. v. N.Y. City Bd. ofEduc., 465 F.3d 503, 510 (2d Cir.2006) (internal citationomitted). Because the plaintiffs seek to prohibit government enforcement, rather than to demandpositive acts from the state, the injunction here is prohibitory in nature, and should not besubjected to the higher "clear and substantial" standard of likelihood of success on the merits.

The plaintiffs seek to enjoin both the continued enforcement ofResolution 3691 thatexpelled Senator Monserrate, and the special election scheduled for March 16,2010, which wasthe direct result of the unconstitutional actions taken by the New York State Senate on the nightofFebruary 9, 2010. On its face, the requested injunction "clearly prohibits, rather than compels,government action." Mastrovincenzo, 435 F.3d at 90. The plaintiffs seek only to enjoin thecontinued enforcement of Resolution 3691 and the attendant actions that follow from theunconstitutional expulsion. Nothing in the plaintiffs' request for relief envisages any "severe orirreversible changes to the status quo," and the state action sought to be prohibited here is not "soregular and consistent that the injunction must be designated as de facto mandatory." Id.

Other circumstances that trigger the higher "substantial likelihood" standard are thoseinstances when the requested injunction "would provide the plaintiff with all the relief that issought," or when the injunction "could not be undone by a judgment favorable to defendants onthe merits at trial." Id. Neither of these conditions is present here. An injunction in favor of theplaintiffs does not constitute all the relief that is sought, because plaintiffs also seek declaratoryrelief that the expUlsion was conducted improperly and was constitutionally illegitimate. Cf.Beal v. Stem, 184 F.3d 117, 122-23 (2d Cir. 1999) (applying heightened "clear and substantial"standard where preliminary injunction would permit plaintiffs to hold large public rally, thereby

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rendering the dispute moot after entry of injunction). Further, in the event of a judgment on themerits favorable to the defendants, the defendants are not precluded from carrying their actionsto fruition. Governor Paterson can still call a special election if (1) the defendants prevail on themerits before April 1, 2010, or (2) if a special session of the legislature is called after April 1,2010. See N.Y. Pub. Off. Law 42(4) (2010); Matter of Barron v. Bd. ofElections in the CityofNew York, 11 N.y'3d 745, 748 (N.Y. 2008).

Therefore, the District Court erred when it concluded that the requested injunction wasmandatory in form. Where, as here, the preliminary injunction requested "is prohibitory inform," and "did not irreversibly affect the rights of the parties," plaintiffs should not have beenburdened with meeting the "clear and substantial" standard. Mastrovincenzo, 435 F.3d at 90.Moreover, even if the District Court was correct that the injunction requested is mandatory innature, the plaintiffs' claims also present a clear and substantial likelihood of success on themerits.(II) THE PLAINTIFFS FACE IRREPARABLE INJURY AND THEIR CLAIMS

PRESENT BOTH A LIKELIHOOD AND A 'CLEAR AND SUBSTANTIAL'LIKELIHOOD OF SUCCESS ON THE MERITSThe District Court correctly concluded that a potential constitutional violation will

demonstrate irreparable harm for the purposes of an application for a preliminary injunction. SeeLynch v. City ofNew York, 589 F.3d 94,99 (2d Cir. N.Y. 2009). Accordingly, because theplaintiffs raise claims of state violations of their fundamental rights under the U.S. Constitutionthat enjoy both a likelihood and a "clear and substantial" likelihood of success on the merits, thedistrict court abused its discretion by denying the preliminary injunction.

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A. SENATOR MONSERRRATE'S EXPULSION VIOLATED PLAINTIFFVOTERS RIGHTS UNDER THE FIRST AND FOURTEENTHAMENDMENTS TO THE U.S. CONSTITUTION

The District Court failed to appreciate the gravity of the burdens on the right to vote andto the right of political association imposed by the defendants' unconstitutional expulsion ofSenator Monserrate. The expulsion and removal of an elected official raises fundamentalquestions concerning voter's rights and due process oflaw. Because this is a case of firstimpression in the Second Circuit, it will not fit neatly into existing legal categories.

In denying the preliminary injunction, the District Court adopted the sliding scaleframework in Anderson v. Celebreeze, 460 U.S. 780, 789 (1983) that has been used to evaluateburdens on ballot access. See, e.g., Burdick v. Takushi, 504 U.S. 428, 434 (1992). In the instantcase, however, the electoral process has already run its course, and the key issue for judicialreview is whether the removal of a duly elected official meets constitutional standards.Moreover, the Anderson framework has never been applied to the removal or expulsion of statelegislators. To the extent that the Anderson framework does apply, the district court nonethelesserred when it failed to correctly weigh and determine "the legitimacy and strength of each ofthose interests." Anderson, 460 U.S. at 789. Thus, the District Court abused its discretionbecause it relied on an erroneous view of the law in concluding that "the burden on voting rightsin the 13th Senatorial District is gossamer." (Memo. at 12.) There are at least two erroneousviews of the law adopted by the District Court when it examined the totality of the circumstancesunder the Anderson framework: that (1) because of the Special Election, "[t]he seat in the 13 thSenatorial District will only be vacant for a few weeks," and that (2) "the burden here is nogreater than that imposed by occasional vacancies due to death or resignation." Id. at 11.

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First, it was error for the District Court to incorporate the Special Election into itsanalysis evaluating the burden imposed on the plaintiffs' voter rights by the Senate's expulsionof Senator Monserrate. 1 In evaluating the totality of the circumstances, the District Court treatedthe Special Election as a mitigating factor that diluted the burden imposed by the State Senate'sexpulsion ofSenator Monserrate on the plaintiffs' fundamental rights. In essence, from theperspective of the District Court the Special Election is a remedial state measure that vindicatesthe plaintiffs' voting and associational rights. Not only is this reasoning unsound, it ignores thekey constitutional violation raised by the plaintiffs' claims.

Treating the Special Election as a remedial measure misunderstands the key issue: thatthe expulsion of Senator Monserrate violated the fundamental associational rights of bothSenator Monserrate and the plaintiff-voters. "The Judiciary is obliged to train a skeptical eye onany qualification of that right." Crawford v. Marion County Election Bd., 553 U.S. 181 (2008)(citing Reynolds, supra, at 562) (1. Souter, dissenting). The Special Election does not cure orameliorate the constitutional violation that occurred because of the Senate 's expulsion vote onthe night of Feb. 9,2010. Because the core of the plaintiffs' case is centered on the proceduresand actions taken by the defendants to expel Senator Monserrate, subsequent state measures suchas the Special Election, do not address the underlying constitutional issues raised by theexpulsion itself. Thus, in assessing the "totality of the circumstances," the District Court abused

1 Plaintiffs' submit that there should not be a special election, because the vacancy was createdby an unconstitutional expulsion. Furthermore, the district court failed to appreciate that byremoving Senator Monserrate, the Senate's action of February 9,2010 could potentially bar himfrom running in the Special Election scheduled for March 16,2010. See Alamo v. Strohm, 74N.Y.2d 801 (N.Y. 1989) (state senator precluded from running in special election held to fill thevacancy created by his removal from office following a felony conviction); People v. Ahearn,196 N.Y. 221 (N.Y. 1909) (elected borough president could not be reappointed to the remainingterm of office after being duly removed for a misdemeanor). If Mr. Monserrate is indeedprohibited from running, his fundamental constitutional right to run for public office will havebeen impaired without due process of law, resulting in an irreparable injury.

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its discretion when it weighed the special election as a factor which favors the state - in effectendorsing the underlying constitutional violation when it accepted, without challenge, thepropriety of the Special Election. (Memo. at 11.)

Second, the District Court relied on an erroneous view of the law when it concluded that''the burden here is no greater than that imposed by occasional vacancies due to death orresignation." Id. The District Court relied on Rodriguez v. Popular Democratic Party, 457 U.S.1, 10, n. 10 (1982) in support of its conclusion, but that case is inapposite. In concluding that astatute providing for the filling of legislative vacancies by appointment had no special impact onany discrete group ofvoters, the U.S. Supreme Court in Rodriguez explicitly noted that suchvacancies were an "unexpected, unpredictable event." 457 U.S. at 10, n. 10. Where, as here, thevacancy created is not the result of a death in office or a voluntary resignation, but instead thelogical culmination of a state action planned well ahead of time and executed by high levelofficials, Rodriguez does not support the district court's view that " the burden on voting rightshere in this case is slight." (Memo., at 11.) Even if strict scrutiny did not apply, because of thedeliberateness and volitional quality of the state action here, it should have been "closelyscrutinized" and "found reasonably necessary to the accomplishment of legitimate stateobjectives in order to pass constitutional muster." Bullock v. Carter, 405 U.S. 134, 144 (1972).

The instant case presents fundamental questions surrounding whether the expulsion itselfwas proper, and the shadow that it casts upon their constitutional rights. In light of the state'sinterest in the "orderly operation of its legislature," (Memo. at 13), censure or suspension wouldhave been a measure far more narrowly tailored, which would have served the state interestequally well without trammeling the plaintiffs' fundamental rights. Within the parameters of theAnderson framework, in its pursuit of a legitimate state interest "a state may not choose means

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that unnecessarily restrict constitutionally protected liberty." Anderson v. Celebrezze, 460 U.S.780, 806 (1983). By using the most extreme sanction available in its disciplinary powers -expulsion of a duly-elected Senator - the State Senate here has manifestly failed to narrowlytailor the means taken to serve its interests in a "less drastic way." Id.

Aside from basing its conclusions on an erroneous view of the Anderson framework, theDistrict Court also neglected to consider the equal protection concerns raised by SenatorMonserrate's expulsion. While this case is one of first impression in the Second Circuit, inanalogous situations, district courts in other Circuits have granted injunctive relief to electedstate officials because the state-imposed restrictions on their office impaired the politicalrepresentation enjoyed by their constituents. In Kucinich v. Forbes, a district court of the SixthCircuit held that implementing a two-week suspension of an elected city councilman wouldviolate the rights of his constituents to the equal protection of the law, guaranteed under theFourteenth Amendment to the U.S. Constitution. 432 F. Supp. 1101, 1117 (N.D. Ohio 1977).Because the suspension of city councilman Gary Kucinich established two different classes ofvoters, the court concluded that the articulated state interest did not justify eroding "thefundamental interests of the voters to representation." Id. Depriving the plaintiff-constituent,Dennis Kucinich, of his right to representation on these grounds was a denial of his right to equalprotection under the law. Id.

A district court of the Third Circuit has also held that the exclusion of a New Jersey StateSenator by the State Democratic Caucus from participating in its deliberations violated both theDue Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Ammond v.McGahn, 390 F. Supp. 655, 660 (D.N.J. 1975), rev'd on other grounds, 532 F.2d 325 (3d. Cir.

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1976)? The district court there held that "[n]o elected representative of the people may bebarred from participation in the forum to which he or she was elected for misconduct, no matterhow egregious, without some type of hearing." Id. (citing Bond v. Floyd, 385 U.S. 116 (1966)).The exclusion of Senator Ammond from caucus deliberations deprived the plaintiff-constituentsof the equal protection of the law, by creating one class of voters "whose Senators couldeffectively participate fully in the legislative process and another class whose Senator couldparticipate only to a limited degree. Id. Although Senator Ammond had not been barred fromvoting on the Senate floor, the court nonetheless recognized that her effectiveness as an electedrepresentative had been "vastly diminish[ ed]." Id.

Thus, federal courts faced with similar situations have concluded that governmentalactions that diminish the ability of a state legislator to represent the interests of his or herconstituency offend the Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution. Because "the rights of voters and the rights of candidates do not lend themselves toneat separation," Bullock v. Carter, 405 U.S. 134, 143 (1972), the expulsion of SenatorMonserrate necessarily implicates the rights ofthe plaintiff-voters to equal protection under thelaw, and ofpolitical association with the candidate of their choice. By depriving his constituentsin the 13 th Senatorial District of their chosen representative, the expulsion of Senator Monserrateleaves the plaintiff-voters disenfranchised, and without the equal protection of the law.

2 The Third Circuit reversed the preliminary injunction granted in favor of the appellee Senator,because the Caucus had voted to readmit the Senator prior to the grant of the preliminaryinjunction. Therefore, there was no longer any clear showing of immediate and irreparableinjury. Ammond v. McGahn, 532 F.2d 325,329 (3rd Cir. 1976). The Third Circuit explicitlynoted, however, that this reversal did not go to the merits of the controversy, and that SenatorAmmond would be free to seek further injunctive relief if she were excluded again at a later date.Id.

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Accordingly, because the District Court's analysis was overly deferential to the profferedstate interest, especially in light of the fundamental rights and equal protection concerns at issuehere, the District Court's conclusion that "the burden on voting rights in the 13th SenatorialDistrict is gossamer" is based on an erroneous view of the law. (Memo. at 12.)

B. LEGISLATIVE LAW 3 IS UNCONSTITUTIONAL BECAUSE IT ISV AGUE AND OVERBROAD

The District Court also failed to appreciate how Legislative Law 3 was void forvagueness and over breadth, in violation of the First Amendment and the Due Process Clause ofthe Fourteenth Amendment. '''Precision of regulation must be the touchstone in an area soclosely touching our most precious freedoms. ,,, Anderson v. Celebrezze, 460 U.S. 780, 806(1983) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). Because Legislative Law 3fails to articulate intelligible standards as to what conduct will warrant expulsion, the statute doesnot conform to the standards of due process, which entitles a person to "be informed as to what[a state law] commands or forbids." Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007)(internal citation omitted). Moreover, because Legislative Law 3 implicates the rights ofpolitical association protected by the First and Fourteenth Amendments to the Constitution, itmust meet a "greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S.566, 573 (1974).

Generally, the minimum procedural requirements necessary to satisfy due process arenotice and an opportunity to be heard. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990);Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,542 (1985). The defendants' actionsleading up to, and including the passage ofResolution 3691, failed to provide adequate notice ofwhat conduct might lead to such an action. To satisfy the notice requirement and to avoid theinfirmity of vagueness, the wording of a statute or a constitutional provision must provide a

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reasonable person with a clear guide so as to what he or she mayor may not do. While no"[i]mpossible standards of specificity are required," Jordan v. DeGeorge, 341 U.S. 223,231(1951), it is nonetheless important that all people affected by the statute or provision know whatconduct will violate it, so they will not be chilled in the exercise of their fundamentalconstitutional rights. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976). The lack of clearly definedstandards for expulsion creates an inherent risk that an abuse may occur by virtue of the overlybroad power vested in the Senate.

The District Court admits that Legislative Law 3 is "a short and plain statement,"(Memo. at 19), but fails to recognize that the brevity of its unqualified language essentially veststhe Senate with ample discretion to abuse its power of expulsion. Even if it was correct toassume that the terse language of 3 incorporates certain procedural safeguards, the enumeratedstandards identified by the District Court still admit of the uncertainty that "men of commonintelligence must necessarily guess at its meaning and differ as to its application." Connally v.Gen. Const. Co. 269 U.S. 385, 391 (1926). Therefore, the District Court's conclusion thatLegislative Law 3 is "neither standardless nor so unclear" is based on an erroneous view of thelaw. (Memo. at 19.)

A prime example of this defect in reasoning is the first standard construed by the districtcourt, that "charges be formally lodged against a legislator." Id. There is no indication ofwhoshould lodge the charges: whether it should be the legislative body, the law enforcementbranches of the executive, or some other branch of government. Moreover, the District Court'sreading ofLegislative Law 3 does not address whether the charges should relate to conductoccurring while in office, or be related to legislative duties. Arguably, if Legislative Law 3permits sanctions against members of the legislature for conduct occurring prior to elective

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office, the statute could be considered overbroad.3 This example alone offers ample illustrationof the vagueness and uncertainty created by the application of Legislative Law 3. In any case,even if Legislative Law 3 admitted of the District Court's interpretation, the actions of theSenate and the Select Committee failed to measure up to those requirements, because at no timein the process did Senator Monserrate receive any formal charges.

The District Court's reliance on Law Students Civil Rights Research Council, Inc. v.Wadmond, 401 U.S. 154 (1971), is also inapposite. That case centered on the question ofvagueness and over breadth surrounding a rule for admission to the New York State Bar, and inupholding its constitutionality on First Amendment grounds, the U.S. Supreme Court stated thatthe state authorities had made clear that "their construction of the Rule [was] both extremelynarrow and fully cognizant of protected constitutional freedoms." Id. at 163. Significantly, theU.S. Supreme Court noted that the state interpretation of the rule was significant, because "[i]fall we had before us were the language of [the Rule], .. . this would be a different case." Id. at162. Moreover, the relevant rule did not demonstrate "an intent to penalize political beliefs." Id.at 163.

3 This result accords with the historical practice adopted by Congress. In Powell v. McCormack,the majority noted that:"The fifth section of the first article of the Constitution authorizes 'each house todetermine the rules of its proceedings, punish its members for disorderly behavior, and,with the concurrence of two-thirds, expel a member.' This power is evidently given toenable each house to exercise its constitutional function of legislation unobstructed. Itcannot vest in Congress a jurisdiction to try a member for an offense committed beforehis election; for such offense a member, like any other citizen, is amenable to the courtsalone."

Powell v. McCormack, 395 U.S. 486, 510 (quoting Report of the Judiciary Committee, H. R.Rep. No. 815, 44th Cong., 1st Sess., 2 (1876)).

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Had Wadmond been a case about the standards for disbarment from the New York StateBar, it may have had some bearing on the issues here. However, because Wadmond examines astatutory framework that governs standards of eligibility rather than standards for removal orexpulsion, it was error for the District Court to rely on Wadmond to defeat the plaintiffs' claimof vagueness and over breadth in Legislative Law 3. Where, as here, the statutory authorityestablishes a framework for expulsion, more clarity and precision must be demanded, becauseLegislative Law 3 effectively impairs the fundamental rights to vote and of political association.Neither is there the presence of a limiting construction of the statute by the state, as was the casein Wadmont. Thus, even if the governmental purpose to be accomplished by Legislative Law 3 is legitimate, "it may not choose a legislative scheme that broadly stifles the exercise offundamental personal liberties." Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).

In addition to the failure to give notice as to the grounds for expulsion, Legislative Law 3 is also over broad because it grants complete discretionary authority for the removal of a StateSenator.4 Although the District Court takes comfort in the fact that expulsion under LegislativeLaw 3 is "ultimately subject to approval by a vote of the entire Senate" (Memo. at 20), the factremains that the absence of clear and defined standards can be exploited by a simple coalition tovote out legislators that the majority chooses to characterize as "unfit ." The record demonstratesthat the district court's faith in the procedures of the Senate is misplaced. The Senate voted to

4 During the deliberations of the Select Committee convened to investigate Senator Monserrate,Senator James S. Alesi stated:

Whatever simple means can be taken to find out, I don't think it's life and death, but itwould be beneficial for the committee here to know because I think it's fair that we cansuppose anything, we are not really bound by any standards, that we could suppose if itwere written by somebody other than her that it might be helpful to us. (Emphasis added)

Transcript of Proceedings of the Select Committee, 0132-0133 (Dec. 8,2009).

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expel Senator Monserrate in a swift and summary manner; there was no debate, no hearing, andno opportunity to present evidence to the full Senate. Because the vagueness ofLegislative Law3 essentially vests the Senate with the power to summarily remove by majority vote theirpolitical opponents from office, the "dangers of arbitrary and discriminatory application" areparticularly acute. Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

C. SENATOR MONSERRATE WAS DEPRIVED OF HIS LIBERTYINTEREST WITHOUT DUE PROCESS OF LAW IN VIOLATION OFTHE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION

The District Court erred in concluding that Senator Monserrate's stigma-plus claim failsbecause he received adequate pre-deprivation process. "[A] person may not be discharged orexpelled from a state public office upon a ground involving criminal guilt, infamy, disgrace, orother grave injury to the individual until after such notice and hearing as is requisite to dueprocess oflaw." McCarley v. Sanders, 309 F. Supp. 8, 11 (M.D. Ala. 1970) (citing Wieman v.Updegraff, 344 U.S. 183, 191-92 (1952)). The stigma from the widely publicized statements ofdomestic violence made by various Senators, coupled with Senator Monserrate's expulsion fromthe Senate without any notice or opportunity to contest the charges or to examine witnesses,amounts to an unconstitutional deprivation of liberty without sufficient process. See Velez v.l&Yy, 401 F.3d 75, 90 (2d Cir.2005) (holding that an elected official 's removal from office inresponse to various stigmatizing statements was an adequate assertion of a deprivation of liberty).

It is axiomatic that, under the Due Process Clause of the Fourteenth Amendment, aperson must be afforded the opportunity for a hearing prior to being deprived of aconstitutionally protected liberty or property interest. U.S. Const. amend XIV, 1; Hodel v. Va.Surface Mining & Reclamation Ass'n, 452 U.S. 264, 299 (1981); Patterson v. City ofUtica, 370F.3d 322,330 (2d Cir.2004). Where, as here, a liberty interest is involved, and the plaintiff

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successfully proves a stigma-plus claim, due process mandates that the remedy is a hearing toclear his name. Donato v. Plainview Old Bethpage Cent. Sch. Dist., 96 F.3d 623,633 (2dCir.1996). Courts have long recognized that when an elected state official is accused ofwrongdoing and before sanctions may be levied, procedures must be in place to accord him dueprocess oflaw and to permit him to defend his reputation and position. See, e.g . Velez v. Levy,401 F.3d 75, 91 (2d Cir.2005) (citing DiBlasio v. Novello, 344 F.3d 292,302 (2d Cir. 2003))(holding that where the state actors are high level government officials only a pre-deprivationhearing would suffice); Ammond v. McGahn, 390 F. Supp. 655, 660 (D.N.J. 1975), rev'd onother grounds, 532 F.2d 325 (3d. Cir. 1976); McCarley v. Sanders, 309 F.Supp. 8 (M.D.Ala.1970) (three judge court).

As to what process is adequate, the hallmark of due process of law has been the basicrequirements of notice and a hearing. Mullane v. Central Hanover Trust Co., 339 U.S. 306,313(1952). A case which is factually similar to the instant one is McCarley v. Sanders, 309 F. Supp.8 (M.D. Ala. 1970), concerning the expulsion of a Senator from the Alabama State Senate. Inthe procedure utilized to expel him, Senator McCarley was denied even the most basic dueprocess requirements. At no time were the formal charges against him presented, nor did hereceive adequate notice of them. The "hearing" carried out by the senate investigatingcommittee was secret and thus denied Senator McCarley a full hearing and the right to confrontany witnesses against him. A comparison of the procedure employed to expel SenatorMonserrate with the proceedings in McCarley presents similarities.

Senator Monserrate received no notice of any specific charges or the grounds forexpulsion, he was only informed that he was the subject of an "investigation;" nor was he givencopies of the materials considered by the Select Committee or the witnesses their staff

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interviewed. Meetings of the Select Committee to determine the scope of the investigation andthe evidence considered went into executive session - Mr. Monserrate had neither access tothose meetings nor prior knowledge of the issues that the Committee was deliberating. The soleright he was given was to appear before the Committee - a hollow right in the absence of theother predicates of due process. Furthermore, Resolution 3409, which created the SelectCommittee, only intimated that his actions "may warrant the imposition of Sanctions by theSenate," and did not indicate the severity of sanctions that could be anticipated. It should alsobe noted that sanctions run the gamut from censure, suspension, revocation of privileges andcommittee chairmanships, to expulsion. This undermines the District Court 's conclusion thatResolution 3409 was "sufficiently specific." (Memo. at 16.) Convening an "ad hoc" committeethat issued no formal charges before recommending the draconian and extreme sanction ofexpulsion fails to accord with fundamental fairness. Moreover, the District Court incorrectlyfound that the Select Committee heard from no witnesses, when in fact staff members of theCommittee interviewed two witnesses.

Here, Senator Monserrate and his counsel were only "extended an open invitation .. toaddress the committee, whether in person or by written submission." (Memo. at 17.) Withoutmore, these procedures fail to comport with the basic requirements of due process of law. SeeMcCarley v. Sanders, 309 F.Supp. 8, 11-12 (1970). Fairness, at the very least, requiresknowledge of the charges lodged, knowledge of the penalties associated with the charges, and animpartial hearing. Senator Monserrate received none of this. Because the District Court failed toappreciate this fundamental precept, its denial of the plaintiffs' preliminary injunction was basedon an erroneous view of the law.

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CONCLUSIONFor the aforementioned reasons, we respectfully request that this Court expeditiously

reverse the district court and issue a Preliminary Injunction enjoining the Senate from enforcingResolution 3691 and prohibiting the Special Election, for "[i]fI err in these conclusions [againsta power to expel], I err on the side of constitutional liberties, trusting in the strength of thesovereign people to maintain itself." Assemblyman H.A. Blodgett, N.Y. Leg. Docs., 143d Sess.,Vol. 13 at 2770 (1920).Dated: New York, New YorkFebruary 23,2010

Respectfully submitted,

260 Madison A venueNew York, NY 10016(212) 532-7586McLAUGHLIN & STERN, LLP

Steven J. HymanAlan E. SashRachel Nicotra260 Madison AvenueNew York, NY 10016(212) 448-1100Attorneys for the Plaintiffs*

* The attorneys for the plaintiffs wish to express their appreciation to Ernie Gao for his assistancein preparing this memorandum.

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plaintiffs-appellants memo of law

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